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B.D. Jhunjhunwalla Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 403 of 1978
Judge
Reported inAIR1986Ori128
ActsOrissa Survey and Settlement Act, 1959 - Sections 19(2); Orissa Survey and Settlement (Amendment) Act, 1975
AppellantB.D. Jhunjhunwalla
RespondentState of Orissa and ors.
Appellant AdvocateAshok Das and ;S.N. Satpathy, Advs.
Respondent AdvocateAddl. Standing Counsel
DispositionPetition allowed
Excerpt:
.....v smt gita banik, 1996 (2) glt 246, are not good law]. - a reference to the order of the appellate authority clearly shows that the relevant factors enumerated in clauses (a) to (d) of sub-section (2) of section 19 of the act have not been taken into account while determining fair and equitable rent. we would accordingly quash the order of the commissioner under annexure-4 as well as the order of the appellate authority under annexure-2. necessarily, therefore, the demand made by the tahsildar under annexure-6 is liable to be quashed and the same is hereby quashed......the appellate authority has categorically stated that the assistant settlement officer fixed the fair rent taking into consideration the rent policy of the government and on determining the market value of the land by referring to registered sale deed no. 6356 dated 30-8-1967 and registered sale deed no. 1751 dated 20-3-1967. the appellate authority while reducing the rent has taken a mean value of the aforesaid two sale deeds and also a registered deed bearing no. 6094 of 1966. the so-called deed no. 6094 of 1966 which has been taken to be a sale deed by the appellate authority is annexure-1 to the writ petition and is, in fact, a registered mortgage deed. a reference to the order of the appellate authority clearly shows that the relevant factors enumerated in clauses (a) to (d) of.....
Judgment:

G.B. Patnaik, J.

1. Petitioner challenges the final order of the Commissioner of Land Records and Settlement (opposite party No. 4) in R. D. Case No. 2591 of 1975 whereby the learned Commissioner has fixed the rent of the lands under occupation of the petitioner at the rate of Rs. 1,000/- per acre. The said order dated 7-12-1976 is annexed to the writ petition as Annexure-4. The petitioner has also prayed to quash the bill amounting to Rs. 62,812.72 sent by the Tahsildar, Cuttack, pursuant to the order of the Commissioner. The said bill is annexed to the writ petition as, Annexure-6.

2. The brief facts of the case are that the petitioner is the owner of Ac. 10.001 of land and a glass factory in mauza Dadhapatna near Barang railway station and the factory stands on an area of 3.00 acres of land appertaining to Thana No. 30, Khatiyan No. 27 and plots Nos. 41,32, 41/561 and 40. The Assistant Settlement Officer in exercise of his powers under the Orissa Survey & Settlement Act, 1958 (hereinafter referred to as the 'Act') fixed fair and equitable rent in respect of the land in possession of the petitioner at the rate of Rs. 2,355/- per acre per annum by order dated 4-6-1969. He also recorded some of the lands in favour of the petitioner. We are not concerned in this writ petition with the recording of lands made by the settlement authorities but are only concerned with fixation of fair and equitable rent. Being aggrieved by the said order, the petitioner carried an appeal to the Settlement Officer which was numbered as Case No. 522 of 1969. The Settlement Officer by his order dated 24-2-1972 (Annexure-2) reduced the rent fixed by the Assistant Settlement Officer and fixed the same at Rs. 1,927/- per acre per annum. On a further revision being carried to the Commissioner of Land Records and Settlement at the instance of the petitioner, the learned Commissioner further reduced the rent to Rs. 1,000/- per acre per annum. The petitioner in this writ petition challenges the aforesaid orders of the settlement authorities. It may be stated that the rent for the lands in question prior to the aforesaid enhancement had been fixed at Rs. 125.10 per annum, which according to the petitioner works out roughly at Rs. 12/- per acre per annum.

3. Mr. Ashok Das, the learned counsel for the petitioner, contends that the fixation of fair and equitable rent made by the authorities under the Act is in contravention of the relevant provisions of the statute and the Assistant Settlement Officer having made the assessment prior to the amendment of the Act by the Orissa Survey and Settlement (Amendment and Validation) Act, (Orissa Act 51 of 1975), the assessment in question is covered by the old provisions and the amended provisions have no application.

4. Section 19 of the Act is the relevant provision which provides the principles for fixing fair and equitable rent for any land. Section 19(1) deals with fixation of rent in respect of land used for agriculture and Section 19(2) deals with fixation of fair and equitable rent for lands used for any purpose other than agriculture. In the present case, the lands in question being used for the purposes of industry are covered by Sub-section (2) of Section 19 of the Act. By the Amending Act of 1975, Section 19 of the principal Act was substituted. Section 2 of the Amending Act has made the amended provisions of Sub-section (2) of Section 19 retrospective by saying : --

'For Section 19 of the Orissa Survey and Settlement Act, 1958 (hereinafter referred to as the principal Act), the following section shall be deemed always to have been substituted.....'

In this view of the matter, there is no substance in the contention of Mr. Das that the present case is governed by the unamended provisions of the Act.

5. Section 19(2), as amended, is extracted hereinbelow in extenso : --

'The Government may also prescribe the principles for fixing fair and equitable rent for lands used for any purpose other than agriculture including all kinds of homestead lands in urban and rural areas of the State, having regard to-

(a) the situation of the land;

(b) purpose for which it is used;

(c) communication and marketing facilities;

(d) market value of the land.'

The provision in Sub-section (2) of Section 19 authorises the Government to prescribe the principles for fixation of fair and equitable rent for lands used for any purpose other than agriculture having regard to the situation of the land; the purpose for which it is used; communication and marketing facilities; and the market value of the land. Under Section 20 of the Act, the Assistant Settlement Officer is to fix the fair and equitable rent in the prescribed manner. The word 'prescribed' has been defined in Section 2(6) as 'prescribed by Rules made under the Act'. Chapter-V of the Orissa Survey and Settlement Rules, 1962 (hereinafter called the 'Rules') deals with settlement of rent. Under Rule 51, the Assistant Settlement Officer is to fix the fair and equitable rent in the light of the factors specified in Clauses (a) to (d) of Sub-section (2) of sec. 19 of the Act. A combined reading of Section 19(2) and Rule 51 makes it abundantly clear that the Assistant Settlement Officer will fix fair and equitable rent taking into consideration the different factors enumerated in Clauses (a) to (d) of Sub-section (2) of Section 19 of the Act. This being the position of law, after examining the order of the appellate authority in Annexure-2 and the order of the revisiohal authority in Annexure-4, we are of the opinion that the fixation of fair and equitable rent has not been done in accordance with the provisions of the Act and the Rules. The original order of the Assistant Settlement Officer is not available on record, but that order having been set aside by higher authorities is of no consequence. The appellate authority has categorically stated that the Assistant Settlement Officer fixed the fair rent taking into consideration the rent policy of the Government and on determining the market value of the land by referring to registered sale deed No. 6356 dated 30-8-1967 and registered sale deed No. 1751 dated 20-3-1967. The appellate authority while reducing the rent has taken a mean value of the aforesaid two sale deeds and also a registered deed bearing No. 6094 of 1966. The so-called deed No. 6094 of 1966 which has been taken to be a sale deed by the appellate authority is Annexure-1 to the writ petition and is, in fact, a registered mortgage deed. A reference to the order of the appellate authority clearly shows that the relevant factors enumerated in Clauses (a) to (d) of Sub-section (2) of Section 19 of the Act have not been taken into account while determining fair and equitable rent. Be that as it may, the revisional authority, i.e. the Commissioner of Land Records and Settlement, did not rely upon the sale deeds on which the lower authorities had acted, but the learned Commissioner also committed the same error by treating the registered mortgage deed (Annexure-1) to be a sale deed and also in coming to the conclusion that the value for which the land covered under the mortgage deed was mortgaged was only in respect of vacant land. A reference to the mortgage deed (Annexure-1) reveals that the land together with all structures and machinery standing on the land had been mortgaged and, therefore, that would not represent the market value of the land, which is one of the factors to be considered under Sub-section(2) of Section 19 of the Act. In that view of the matter, we find sufficient force in the contention of the learned counsel for the petitioner that the fixation of rent has been made by the authorities in not taking into consideration the relevant factors enumerated in Sub-section (2) of Section 19 of the Act. We would accordingly quash the order of the Commissioner under Annexure-4 as well as the order of the appellate authority under Annexure-2. Necessarily, therefore, the demand made by the Tahsildar under Annexure-6 is liable to be quashed and the same is hereby quashed.

6. In the result, therefore, we would set aside the fixation of fair and equitable rent in respect of the petitioner's lands made by the settlement authorities and remit the matter to the Assistant Settlement Officer who will determine the fair and equitable rent taking into consideration the relevant factors enumerated in Clauses (a) to (d) of Sub-section (2) of Section 19 of the Act. The writ petition is accordingly allowed, but in the facts and circumstances of the case, there would be no order as to costs.


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